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One checkmark. That’s all that what was missing on a form filled out by an employee filing an age discrimination complaint against his former employer. But it was enough to cause the 5th U.S. Circuit Court of Appeals to vacate and dismiss a judgment in the employee’s favor. On Jan. 4, in a case of first impression, the 5th Circuit ruled in Jones v. Grinnell Corp. that an Equal Employment Opportunity Commission right-to-sue letter cannot substitute for a letter from the Texas Commission on Human Rights. The 5th Circuit held that Sherman Wallace Jones had not exhausted his state administrative remedies. The ruling may be detrimental to employees who’ve already filled out EEOC complaints if they haven’t checked the box at the bottom indicating that they want the charge filed with the EEOC and the TCHR, says Grinnell’s lawyer, Michael Buchanan. This could be good for employers. According to the 5th Circuit’s opinion, Jones filed his age discrimination complaint with the EEOC when, at age 57, he was told his position at Grinnell was being eliminated as part of the company’s reorganization plan. He’d worked as a warehouse manager and supervisor at Grinnell for nine years. Grinnell denied that any discrimination had occurred, says Buchanan, a senior partner in the Dallas office of Strasburger & Price. A jury found that Grinnell had dismissed Jones in violation of the Texas Human Rights Act, and awarded him damages, the 5th Circuit wrote. After the trial judge significantly reduced the damage award, Jones appealed and Grinnell cross-appealed based on the magistrate judge’s denial of its motion for judgment as a matter of law, the 5th Circuit noted. A worksharing agreement between the EEOC and the TCHR permitted an employee to initiate the administrative process of both agencies by filing only with the EEOC. But while Jones addressed his EEOC complaint to both agencies, he did not check the box at the bottom of the form indicating that he wanted the charge to be filed with the EEOC and the state, the opinion noted. Jones also didn’t allege that his employer had violated any state law, instead mentioning only the federal Age Discrimination in Employment Act. “The district court erroneously assumed that it could hear a Texas Human Rights Act claim on equitable grounds,” wrote Judge Emilio M. Garza for the three-judge panel. He was joined by Judges E. Grady Jolly and Patrick E. Higginbotham. “That is not the case. If a complainant fails to exhaust his state administrative remedies, the Texas Human Rights Act jurisdictionally bars this court from hearing the case regardless of equitable and policy concerns.” The court mentioned that the EEOC appeared not to have forwarded the charge to the TCHR. According to the court’s opinion, it wasn’t clear from the record if the complaint wasn’t sent because the EEOC couldn’t discern whether Jones wanted a dual-agency filing or whether the EEOC just goofed. “Some courts have held that the failure to check the dual-agency box does not prevent the complaint from being filed with the TCHR,” wrote Garza in a footnote, citing Nash v. D.S. Construction Co., a 1999 case out of the Western District of Virginia. “One potentially significant factual difference between Nash and our case is that EEOC did not forward the complaint to the TCHR in our case. Consequently, the TCHR did not have notice of Jones’s [sic] complaint, and could not have initiated a mediation process.” CLARIFICATION “Now that the 5th Circuit has clarified the rule, I don’t think people will run afoul of it in the future,” says Buchanan. “I think there are a lot of defense lawyers and employers who are going to get summary judgment cases in the next year or so because of similar facts as the Jones v. Grinnell case,” Buchanan says. The plaintiff’s attorney, James Gruben of Plano, did not return a phone call seeking comment. But Gregg Rosenberg, an employment lawyer who represents plaintiffs, notes “that sitting on its own this is a bad case for plaintiffs. … I think the result is clearly inequitable and not within the meaning of the wording of the language of the Texas Human Rights Act itself, which clearly states that the policies of the act are meant to be viewed consistently with statutes such as its federal counterparts, the Age Discrimination in Employment Act and Title VII. It’s also inequitable because the whole underlying purpose of filing a charge of discrimination with either agency is to give the employer notice and give an agency a chance to conciliate. Being that it was filed with the EEOC there was definitely that chance,” says Rosenberg, a principal in Rosenberg & Associates in Houston. “The reason people are getting tripped up by this is because we’ve got these outdated rules and a hair-trigger filing of lawsuits,” says Michael P. Maslanka, a partner specializing in employment defense at Clark, West, Keller, Butler & Ellis in Dallas. An increase in the number of laws and remedies since the early ’90s has likewise spawned an increase in the number of discrimination claims being filed in the courts, he says. While the agencies were born to help keep the claims out of the judicial system, Maslanka says the legislative intent has been forgotten and the agencies have instead become “clearinghouses” for discrimination claims. “The rules were designed so that these agencies would try to resolve the problems themselves,” says Maslanka. “But that doesn’t happen any more because the rules are so outdated. You know what it’s like trying to figure out what these agencies want you to do and what the law requires?” he asks. “It’s like trying to figure out how to program your VCR.”

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